The COVID-19 ER Act

On 23 April 2020, the COVID-19 Emergency Response Act 2020 (Qld) (COVID-19 ER Act) received royal assent and came into force. The COVID-19 ER Act, amongst other things:

• Amends the Parliament of Queensland Act 2001 (Qld) to allow meetings of Parliament to be conducted by electronic means;
• Provides regulation-making powers to implement the National Cabinet's agreed residential and commercial tenancy principles;
• Establishes a Small Business Commissioner;
• Makes amendments to other legislation to establish regulation-making powers to extend the automatic expiry of subordinate legislation and the commencement of laws to 31 December 2020; and
• Creates a modification framework that allows extraordinary regulations and statutory instruments be made to modify legislative requirements in requirements related to attendance at places or meetings, making and associated use of documents and physical presence; requirements related to statutory timeframes; and requirements related to proceedings of courts and tribunals.

The COVID-19 ER Act and all instruments and regulations made under it expire on 31 December 2020.

Modification framework

Typically, omnibus legislation would be the mechanism used to amend numerous individual pieces of legislation to implement significant legislative change. That was the approach used in Victoria with the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), passed on the same day the Queensland COVID-19 ER Act received assent.

The modification framework approach of the Queensland COVID-19 ER Act is to identify broad legislative requirements that will be impacted or made difficult by COVID-19 and allows the making of regulations to either amend or remove any of those requirements, no matter the area of law in which they appear. The modifications must, however, be necessary for one of the following purposes of the COVID-19 ER Act (Purposes of the COVID-19 ER Act):

• To protect the health, safety and welfare of persons affected by COVID-19;
• To facilitate the continuance of public administration, judicial process, small business and other activities disrupted by COVID-19;
• To provide for matters related to residential, retail and prescribed leases affected by the COVID-19 emergency; and
• To support the Queensland rental sector during the COVID-19 emergency period.

We discuss some of the modifications that can be made in relation to certain legislative requirements below.

Modifications to reduce physical contact

Where an Act requires or permits a person to physically attend a place or meeting, or an entity to call or hold a meeting, for a particular purpose or particular matter, the COVID-19 ER Act allows for a regulation to be made to modify these requirements to the extent necessary to achieve one of the Purposes of the COVID-19 ER Act.

Where a regulation is made to address these requirements, it can make a number of modifications to achieve or otherwise deal with the purpose or matter for which the meeting was meant to be held. These changes may include:

• Providing that persons may attend in a way other than by physical attendance (ie by electronic means);
• Modifying procedures or requirements related to meetings;
• Suspending the requirement to attend, hold or call a meeting;
• Empowering the chief executive under the relevant act to exercise discretion on whether, when or how attendance is required, to suspend requirements for an entity to call or hold a meeting, or to issue guidelines about the modified requirements; and
• Providing for any matter incidental to the purpose or matter for which the meeting was meant to be held.

The regulation may have retrospective operation to a day not earlier than 19 March 2020.

Modifications to requirements relating to documents

Where an Act requires or permits documents to be dealt with in particular ways described in the COVID-19 ER Act, the Act allows for a regulation to be made to modify those requirements to the extent necessary to achieve one of the Purposes of the COVID-19 ER Act. The requirements that can be modified include, among other things:

• Signing of documents;
• Witnessing signatures;
• Certification by signatories, witnesses or other persons;
• Verification of identity;
• Attestation of a document;
• Production of a documents;
• Making of a document in a particular way;
• Recording of information;
• Filing, lodgement, giving or service of a document;
• The sighting of a document;
• The publication or display of a notice or advertisement; and
• The retention of documents and information.

Where a regulation is made to address these requirements, it can do so by prescribing modified requirements or arrangements, or suspending the requirements or arrangements.

Modifications to statutory time limits

The COVID-19 ER Act also allows for the modification of timeframes that are imposed by another Act or by an entity that is expressly authorised to establish timeframes.

First, modifications can be made by an entity where that entity is expressly authorised under an Act to modify:

• A period within which an entity is authorised to do a thing (ie make an application; pay an amount; give or ask for a document, comply with a direction or notice. exercise a power, perform a function, or make or give reasons for a decision), or
• A period at the end of which a thing expires (ie a document, an authority, licence or permit, or a digital photo or digitised signature).

Where an entity only has the power to set or modify timeframes on particular grounds, the COVID-19 ER Act will allow the entity to also make modifications to timeframes on the ground that the entity is satisfied that the modification is necessary for one of the Purposes of the COVID-19 ER Act. Modifications under this power can be made to have retrospective operation to a day not earlier than 19 March 2020.

Second, modifications can be made where an Act provides for a period within which an entity is authorised to do a thing, or a period at the end of which a thing expires, which can include a savings or transitional regulation. Modifications can be made by a regulation that expressly modifies the period, authorises an entity having a function under the act to modify the period, or authorises that entity to give its delegate or subdelegate the power to modify the period. Modifications may only be made to the extent necessary to achieve one of the Purposes of the COVID-19 ER Act. The regulation may have retrospective operation to a day not earlier than 19 March 2020.

Modifications to proceedings of courts and tribunals

The COVID-19 ER Act also creates a framework to modify statutory timeframes for, and the conduct of, proceedings in courts and tribunals.

First, where an Act provides for a period within which an entity is authorised or required to do a thing relating to a proceeding, the COVID-19 ER Act allows for the creation of a regulation to modify the timeframe generally, and provides a court with jurisdiction the power to modify the timeframe in relation to a particular proceeding. Modifications may only be made on the ground it is necessary to achieve one of the Purposes of the COVID-19 ER Act. A regulation may have retrospective operation to a day not earlier than 19 March 2020.

Second, a regulation may be made under the COVID-19 ER Act to provide for modified processes and requirements in relation to proceedings. These may include:

• Alternative processes or methods for making, signing, filing, giving or verifying documents;
• The use of audio and visual links to appear, give evidence or make submissions, and to take an oath or make an affirmation; and
• The restriction of access to the proceedings by members of the public.

Impact on health industry

The portfolio of legislation administered by the Queensland Department of Health is broad, including legislation related to areas of, among other things, hospital and health practitioners (including health practitioner investigations and discipline), food safety and regulation, mental health, public health, tobacco and smoking products, radiation safety, the ambulance service, and pest management. Given the broad range of regulation-making powers in the COVID-19 ER Act, future regulations could include:

• An extension on timeframes for applications for, and the expiry of, licences and registrations (eg health practitioners, pest management technicians licence, food businesses);
• Modifications relating to the conduct of proceedings in the Mental Health Court or the Mental Health Review Tribunal and processes initiated by the Health Ombudsman or under the Health Practitioner Regulation National Law (Qld), such as extensions of deadlines for which something must be done (eg the provision of documents or submissions), or modifications to the processes for how those things must be done (eg when and how documents are to be filed and served, when and how proceedings or investigations are to be conducted);
• Modifications to the conduct of, or the suspension of, required meetings (eg board meetings, health service executive committee meetings, meetings of the Advisory Council);
• How and when notifications must be made (eg mandatory notifications about health practitioners to the health ombudsmen, notification of change of ownership of a pharmacy business); and
• An extension of limitation periods for causes of action, whether by a general extension in a regulation, or by a court in an individual case (eg the limitation period for personal injuries).

Modifications can only be made to achieve one of the Purposes of the COVID-19 ER Act. The above measures, if ultimately introduced, could fall within either the purposes of protecting the health, safety and welfare of persons affected by COVID-19, or facilitating the continuance of public administration, judicial process, small business and other activities disrupted by COVID-19. While we have specifically considered matters relevant to the health industry, the COVID-19 ER Act extends well beyond this and has the potential to be utilised across many portfolios.

To keep up to date on regulations made in the Queensland Parliament, including those made under this COVID-19 ER Act, you can subscribe to the 'Tabled Paper Alerts' on the Queensland Parliament website. If you have any questions about the new powers or how they may impact your organisation, please contact a member of our Health Industry team.